Citizens to Preserve Foster Park v. Volpe

No. 71-1811 (7th Cir. August 31, 1972)

The decision of the court below (see 1 ELR 20389) is affirmed by the Seventh Circuit, thus permitting construction of an expressway in Fort Wayne, Indiana.

Counsel for Plaintiffs
Richard C. Ver Wiehe
Lebamoff, Ver Wiehe & Snow
1310 Anthony Wayne Bank Building
Fort Wayne, Indiana 46802

Counsel for Defendant
William Lee U.S. Attorney
Federal Building
Fort Wayne, Indiana 46802

Before HASTINGS, Senior Circuit Judge, CUMMINGS, Circuit Judge and CAMPBELL, Senior District Judge.^*

[2 ELR 20560]

PER CURIAM.

This is an action in which the plaintiff sought to enjoin the defendant, Secretary of Transportation, from taking further federal action, including the further disbursement of federal funds, in connection with the construction of an expressway in Fort Wayne, Indiana. The complaint charged that the defendant had failed to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., that he had violated § 4(f) of the Department of Transportation Act, 49 U.S.C. § 1453 (f), and § 138 of the Federal-Aid-Highway Act, 23 U.S.C. § 138, and finally that the defendant's actions did not satisfy § 128 of the Federal-Aid-Highway Act, 23 U.S.C. § 128, and Public Policy Memorandum 20-8 promulgated thereunder. Following a full hearing at which the district court heard and considered extensive evidence and testimony, the plaintiffs' motion for a preliminary injunction was denied. Plaintiffs appeal from the interlocutory order denying the preliminary injunction and invoke our jurisdiction under 28 U.S.C. § 1292.

After a careful review of the record below, we affirm the decision of the district court and adopt its opinion as our own. The findings of fact made by the district judge are not "clearly erroneous" and we fully agree with the principles of law applied by the district judge. The opinion of the district court denying the motion for preliminary injunction is appended hereto.

Since a trial on the merits may yet be necessary, we observe that this is a case wherein the time saving consolidation procedure outlined in rule 65 (a) (2) of the Federal Rules of Civil Procedure¹ could have been used. Without sacrificing the interests of the parties, this rule provides a helpful saving of jdicial time for both courts. It should be employed whenever feasible.

The decision of the district court is affirmed.

AFFIRMED.

* Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

1. Rule 65 (a) (2) provides: "Consolidation Of Hearing With Trial On Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subdivision (a) (2) shall be so construed and applied as to save to the parties any right they may have to trial by jury."